Criminal suspects may not invoke their right remain silent by simply remaining silent during a police interrogation, the US Supreme Court declared on Tuesday.

In a 5-to-4 decision, the high court said that a suspect in police custody must make a simple, unambiguous statement that he or she wants to remain silent or that he or she does not want to talk to the police.

Without such a verbal declaration, any incriminating admissions made after a suspect has been given Miranda warnings about the right to remain silent may be used against that suspect in court, the high court said.

“A suspect who has received and understood the Miranda warnings, and has not invoked his Miranda rights, waives the right to remain silent by making an uncoerced statement to the police,” Justice Anthony Kennedy wrote in the majority opinion.

In a dissent, Justice Sonia Sotomayor said the ruling marked “a substantial retreat from the protection against compelled self-incrimination” dating from the Supreme Court’s landmark 1966 opinion in Miranda v. Arizona.

“The court today creates an unworkable and conflicting set of presumptions that will undermine Miranda’s goal of providing ‘concrete constitutional guidelines for law enforcement agencies and courts to follow,’ “ Justice Sotomayor wrote.

Miranda v. Arizona is the decision that created the requirement that police advise suspects of their right to remain silent and to the assistance of a lawyer. The requirement is designed to prevent police from attempting to solve crimes by beating or otherwise coercing confessions from suspects. It is also designed to ensure that any statements made in police custody are voluntary and, thus, more reliable as evidence.

Silent during questioning ... mostly

Tuesday’s decision comes via an appeal stemming from a fatal shooting in January 2000 outside a shopping mall in Southfield, Mich.

Van Chester Thompkins was arrested about a year later and interrogated by police. During the questioning, Mr. Thompkins was advised of his Miranda rights and given a form to sign. He refused to sign it.

Thompkins remained largely silent during most of a three-hour interrogation. About 2 hours and 45 minutes into the questioning, one of the officers asked Thompkins if he believed in God. When he answered, “Yes,” police say his eyes welled up with tears.

The officer then asked: “Do you pray to God?”

The suspect answered: “Yes.”

Another question: “Do you pray to God to forgive you for shooting that boy down?”

Thompkins answered: “Yes."

Thompkins was charged with first-degree murder. At trial, his lawyer tried to keep the incriminating statement out of the trial by arguing that his client had invoked his right to remain silent.

The trial judge allowed the statement to be introduced as evidence. Thompkins was found guilty and sentenced to life in prison without parole.

On appeal, a federal judge rejected Thompkins’ claim that he had invoked his right to remain silent during the interrogation. That decision was reversed by a panel of the Sixth US Circuit Court of Appeals in Cincinnati.

The appeals court said Thompkins’ incriminating statement must be thrown out because his nearly three hours of silence in the interrogation room amounted to an invocation of his right to remain silent.

Ambiguity by the suspect

On Tuesday, the Supreme Court reversed that decision. In a majority opinion joined by the court’s conservative wing, Justice Kennedy said Thompkins’ actions during the interrogation were ambiguous.

“Thompkins did not say that he wanted to remain silent or that he did not want to talk with the police,” Kennedy wrote. “Had he made either of these simple, unambiguous statements, he would have invoked his right to cut off questioning.”

Kennedy added: “Here he did neither, so he did not invoke his right to remain silent.”

“Criminal suspects must now unambiguously invoke their right to remain silent – which, counterintuitively, requires them to speak,” she wrote. “At the same time, suspects will be legally presumed to have waived their rights even if they have given no clear expression of their intent to do so.”

Kennedy said Thompkins’ reply to the police question about praying to God for forgiveness for shooting the victim is a course of conduct that indicated that the suspect had waived his right to remain silent.

“If Thompkins wanted to remain silent, he could have said nothing in response to [the officer’s] questions, or he could have unambiguously invoked his Miranda rights and ended the interrogation,” Kennedy said.

“The fact that Thompkins made the statement about three hours after receiving a Miranda warning does not overcome the fact that he engaged in a course of conduct indicating waiver,” he wrote. “Thompkins knowingly and voluntarily made a statement to police, so he waived his right to remain silent.”

A green light for lengthy interrogations?

Sotomayor disagreed. “Today’s clear-statement rule for invocation invites police to question a suspect at length – notwithstanding his persistent refusal to answer questions – in the hope of eventually obtaining a single inculpatory response which will suffice to prove waiver of rights,” she said.